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SENTENCING - Communication with a child by computer in order to commit an offence (luring)

Tuesday, July 23, 2019 @ 8:40 AM  

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Sentencing hearing for Fawcett, who pleaded guilty to one count of child luring. Bradner was a member of a group called Creep Catchers. The members of the group were individuals who posed as underage girls or boys on social media websites or apps in an effort to catch potential perpetrators of child luring and/or sexual exploitation. Bradner created a fake profile on a dating app. The profile was of a young woman named Taylor with a stated age of 19 and a profile photo of an adult female. Between December 25, 2016 and January 3, 2017, Fawcett and Taylor exchanged some messages on the app. On January 3, 2017, Fawcett and Taylor started communicating by text message. Taylor told Fawcett that she had lied about her age and that she was 12 years old. Fawcett believed he was communicating with a 12-year-old girl. Fawcett’s communications became sexually explicit. Fawcett then drove to meet Taylor at a Tim Horton’s in Kamloops, British Columbia. When he arrived at the parking lot, Bradner confronted him. The meeting was video recorded by another member of Creep Catchers. After the encounter, Bradner called the police. At some point, the video footage of the encounter was posted on YouTube. The Crown proceeded summarily. As a result, there was a six-month mandatory minimum sentence. The Crown was seeking nine to 12 months’ imprisonment followed by two years’ probation. The Defence was seeking a conditional sentence order in the range of four to six months, followed by a lengthy period of probation. Pursuant to s. 12 of the Charter, the Defence challenged the mandatory minimum sentence as cruel and unusual punishment.

HELD: Fawcett sentenced to a six-month conditional sentence order, followed by 24 months’ probation. The factors of most concern were the volume of communications, the duration, the persistence, the graphic sexual content, and the attempt to meet. Fawcett had no prior criminal record and he suffered from a developmental disability. He was induced into committing the offence by the Creep Catchers. That fact, together with his significant cognitive impairment, reduced his moral blameworthiness. Absent the mandatory minimum, the fit sentence for Fawcett was a six-month conditional sentence order, followed by 24 months’ probation. The mandatory minimum was grossly disproportionate to the sentence the Court found fit for Fawcett on the facts of the case and regarding his personal circumstances. The mandatory minimum breached s. 12 of the Charter and could not be saved by s. 1. The Court therefore declined to impose the mandatory minimum. Sentence: Six-month conditional sentence order; 24 months’ probation; DNA order; 10-year Sex Offender Information Registration Act order.

R. v. Fawcett, [2019] B.C.J. No. 1139, British Columbia Provincial Court, S.D. Frame Prov. Ct. J., June 18, 2019. Digest No. TLD-July222019005